FEDERICO T. MONTEBON and, ELEANOR M. ONDOY vs.

COMMISSION ON ELECTIONS and

SESINANDO F. POTENCIOSO, JR. G.R. No. 180444. April 9, 2008. Ynares-Santiago, J.]
FACTS
Petitioners Montebon and Ondy and respondent Potencioso, Jr. were candidates for municipal councilor of
the Municipality of Tuburan, Cebu for the May 14, 2007 Synchronized National and Local Elections. On April
30, 2007, petitioners and other candidates for municipal councilor filed a petition for disqualification against
respondent with the COMELEC alleging that respondent had been elected and served three consecutive
terms as municipal councilor in 1998-2001, 2001-2004, and 2004-2007. Thus, he is proscribed from running
for the same position in the 2007 elections as it would be his fourth consecutive term.

Private respondent claimed that the service of his second term in 2001-2004 was interrupted on January 12,
2004 when he succeeded as vice mayor of Tuburan due to the retirement of Vice Mayor Petronilo L.
Mendoza. Consequently, he is not disqualified from vying for the position of municipal councilor in the 2007
elections.

COMELEC First Division denied the petition for disqualification ruling that respondent's assumption of office
as vice-mayor should be considered an interruption in the continuity of his service. His second term having
been involuntarily interrupted, respondent should thus not be disqualified to seek reelection as municipal
councilor.

On appeal, the COMELEC En Banc upheld the ruling of the First Division.

ISSUE
Whether or not COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in
ruling that respondent's assumption of office as vice-mayor in January 2004 interrupted his 2001-2004 term
as municipal councilor.

RULING
The petition for certiorari lacks merit. While it is undisputed that respondent was elected municipal councilor
for three consecutive terms, the issue lies on whether he is deemed to have fully served his second term in
view of his assumption of office as vice-mayor of Tuburan on January 12, 2004.
Succession in local government offices is by operation of law. Section 44 of Republic Act No. 7160, otherwise
known as the Local Government Code, provides that if a permanent vacancy occurs in the office of the vice
mayor, the highest ranking sanggunian member shall become vice mayor.

In this case, a permanent vacancy occurred in the office of the vice mayor due to the retirement of Vice
Mayor Mendoza. Respondent, being the highest ranking municipal councilor, succeeded him in accordance
with law. It is clear therefore that his assumption of office as vice-mayor can in no way be considered a
voluntary renunciation of his office as municipal councilor.

The legal successor is not given any option under the law on whether to accept the vacated post or not.
Section 44 of the Local Government Code makes no exception. Only if the highest-ranking councilor is
permanently unable to succeed to the post does the law speak of alternate succession. It is therefore more
compulsory and obligatory rather than voluntary.